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US Senate Moves To Update Email Privacy Law

by Glen Shapiro,, New York

06 December 2012

The United States Senate Judiciary Committee has approved a bill, authored by its Chairman Patrick Leahy (D - Vermont), which would update the Electronic Communications Privacy Act (ECPA) and end the six-month privacy window for email messages.

The ECPA of 1986, as amended, protects wire, oral and electronic communications while those communications are being made, are in transit, and when they are stored on computers. The Act applies to email, telephone conversations, and data stored electronically.

However, the ECPA has been criticized as it is said to be relatively easy for a governmental agency to demand that internet service providers hand over personal consumer data that has been stored on their servers, while email that is stored on a third party's server for more than 180 days is considered by the law to be abandoned. All that is required for a US law enforcement agency to obtain the content of the emails is a written statement certifying that the information is relevant to an investigation, with no judicial review being needed.

When the law was initially passed, emails were stored on a third party's server for only a short period of time, just long enough to facilitate transfer of email to the consumer's email client, which was generally located on their personal or work computer. With current online email services, such as Gmail and Hotmail, users are more likely to store emails online indefinitely, rather than to only keep them for less than 180 days.

If the same emails were stored on the user's personal computer, it would require the agency to obtain a warrant first for seizure of their contents, regardless of their age. When they are stored on an internet server however, no warrant is needed, starting 180 days after receipt of the message.

The draft bill therefore attempts to update the ECPA to add privacy safeguards for email and other electronic communications. It eliminates the 180-day rule, such that the government must notify an individual whose electronic communication has been disclosed, and provide that individual with a copy of the search warrant used to obtain the information within 10 business days.

To help with sensitive law enforcement investigations, however, Leahy’s legislative proposal provides that the government can seek a court order to delay notifying an individual for up to 180 days, and an amendment was adopted to modify this provision to permit a delay of notice for only up to 90 days for governmental entities that are not law enforcement agencies.

In addition, the measure also makes clear that the search warrant requirement in the bill for electronic communications content does not apply to any other federal criminal or national security laws. In particular, the bill does not alter federal counter-terrorism or other criminal laws.

Leahy confirmed that the "bill stays true to its core purpose - to strengthen the protection provided by requiring that the government get a search warrant to obtain email content, even from third-party providers."

"Three decades after the enactment of ECPA, Americans face even greater threats to their digital privacy, as we witness the explosion of new technologies and the expansion of the government’s surveillance powers," Leahy added. "Today, the Judiciary Committee has an important opportunity to begin to address this privacy challenge."

The President and CEO of the Computer & Communications Industry Association (CCIA), Ed Black, commented that "updating our laws which protect vital constitutional rights in this era of technological change has been long overdue. CCIA is grateful to Chairman Leahy and other supporters of this legislation for beginning to move legislation ensuring that our emails, instant messages and social networking communications have the level of protection that is more on par with the principles of a robust 4th Amendment."

"We believe law enforcement should use the same standard to search your inbox that they do to search your home," concluded Chris Calabrese, legislative counsel for the American Civil Liberties Union.

TAGS: business | law | enforcement | internet | legislation | United States | legislation amendments | telecoms | services

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